I hereby give notice that a meeting will be held on:

Date: Time: Meeting Room: Venue:

Wednesday 8 July 2015 9.30am Boardroom Ground Floor Town Hall 301-303 Queen Street

THE AUCKLAND DISTRICT LICENSING COMMITTEE APPLICATION FOR OFF-LICENCE BY HG TRADING LIMITED AT 605 MOUNT EDEN ROAD, MT EDEN TO TRADE AS H G TRADING LTD MEMBERS Chairperson Member Member

Mr Gavin Campbell Ms Patricia Reade Mr Ken Taylor

Andrea Aranha DEMOCRACY ADVISOR HEARINGS

Contact Telephone: 8908104 or 021 308126 Email: [email protected] Website: www.aucklandcouncil.govt.nz

Note:

The reports contained within this agenda are for consideration and should not be construed as a decision of Council. Should Committee Members require further information relating to any reports, please contact the Democracy Advisor Hearings.

WHAT HAPPENS AT A HEARING

At the start of the hearing, the Chairperson of the District Licensing Committee will introduce the Panel Members sitting on the hearing committee and he/she will briefly outline the procedure for the hearing. The Chairperson may then call upon the parties present to introduce themselves to the committee. The Chairperson is addressed as Mr Chairman or Madam Chair. If any party intends to give written or spoken evidence in Maori, the Democracy Advisor Hearings must be informed of this at least five working days prior to the Hearing so that a qualified interpreter can be provided. Catering is not provided at the hearing. Scheduling objectors to be heard Approximately one week prior to the hearing, a timetable for all objectors who have returned their hearing attendance form will be prepared. Please note that during the course of the hearing, changing circumstances may mean that the proposed timetable is delayed or brought forward. Objectors wishing to be heard are therefore requested to ensure that they can be available to attend the hearing and present their evidence, as and when they may be required. The Democracy Advisor - Hearings will advise objectors, at the earliest possible opportunity, on any changes to the timetable. The Hearing Procedure The usual procedure for a District Licensing Committee Hearing is: •

The applicant will be called upon to present his/her case. The applicant may be represented by legal counsel or consultants and may call witnesses in support of the application. All witnesses will be required to take either an oath on the Bible or an affirmation. After the applicant has presented his/her case, all parties with speaking rights at the hearing will have an opportunity to cross examine witnesses. Members of the District Licensing Committee may ask questions to clarify the information presented.

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Agency objectors or public objectors are then called upon to speak. Objectors may also be represented by legal counsel or consultants and may call witnesses on their behalf. Each speaker will be required to take either an oath on the Bible or an affirmation. All parties with speaking rights at the hearing will have an opportunity to cross examine witnesses of the objectors once again.

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Should you wish to present written information (evidence) in support of your application or your objection please ensure you provide the number of copies as indicated on your notification letter previously sent to you.

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At any stage members of the District Licensing Committee may ask questions

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Once objections and cross-examination has finished, the applicant or his/her representative has the right to summarise the application and reply to matters raised by objections. Members of the District Licensing Committee may ask further questions of the applicant at this stage.

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The chairperson then generally closes the hearing and the applicant, objectors and their representatives leave the room. Sometimes the chairperson will give a verbal decision; otherwise the District Licensing Committee will then deliberate and will release its decision in writing in due course.

Note:

The reports contained within this agenda are for consideration and should not be construed as a decision of Council. Should Committee Members require further information relating to any reports, please contact the Democracy Advisor Hearings.

1.

WELCOME AND INTRODUCTIONS

2.

DECLARATION OF CONFLICT OF INTEREST Members of the committee to confirm whether they have a conflict of interest in relation to the application.

3.

OVERVIEW OF THE PROCEEDINGS The chairperson will outline the process for the hearing of evidence from the parties.

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APPLICATION Application by HG Trading Limited for an Off-Licence, at 605 Mount Eden Road, Mt Eden The following papers are provided in relation to an Off-Licence application by HG Trading Limited for premises situated at 605 Mount Eden Road, Mt Eden Auckland to trade as H G Trading Ltd.

Note:

Liquor Licensing Inspector’s Report

Page 1 - 10

Application

Page 11 - 28

Police Report

Page 29 - 31

Medical Officer of Health Report

Page 32

Public Notices

Page 33 - 36

Supporting Documents

Page 37 - 114

The reports contained within this agenda are for consideration and should not be construed as a decision of Council. Should Committee Members require further information relating to any reports, please contact the Democracy Advisor Hearings.

Report on an Application for Off-licence under section 103(2) of the Sale and Supply of Alcohol Act 2012

To:

District Licensing Committee

From:

Del Haddy – Alcohol Licensing Inspector

Date:

16 April 2015

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APPLICATION DESCRIPTION

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Application and Property Details

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Applicant’s name:

HG Trading Limited

Site address:

605 Mount Eden Road, Mount Eden, Auckland 1024

Trading name:

H G Trading Ltd

Type of Premises:

Off Licence Complimentary sales s35.

Risk Rating:

Low

Application Number:

Q/OFL/2014/3492

Date Received by Council:

24 November 2014

EXECUTIVE SUMMARY

This is a report for an application for a new off-licence. The criteria found at section 105 of the Sale and Supply of Alcohol Act 2012 applies to this application. The applicant HG Trading Limited have been a certified incorporation with companies office since 19 September 2012, they currently rent the whole of the corner section of 599 to 607 Mt Eden Road, Mount Eden, Auckland. The applicant currently operates a restaurant style On Licence trading as ‘Hees Garden Restaurant’, 007/ON/9252/2014 from this location, the floor plan for that licence clearly indicates the licensed area in yellow as that of 599-603 Mt Eden Road, (copy attached). This floor plan excludes number 605 and 607 from the licensed area. This application has resulted from a new business, which will operate from 605, which is an area of the section that is not currently licensed. The applicant for this new Off Licence is HG Trading Ltd, at 605 Mt Eden Road, Mount Eden, Auckland, which will trade as H G Trading Ltd.

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The applicants original application form is flawed with mistakes and unintentional errors as listed; • The applicant applied for an off licence not realising the requirements of s32 of the Act. • The applicant was unaware of s35 of the Act. • The applicant was unaware of the complications and differences in relation to a Gift shop or a Souvenir shop. • The applicant wrongly completed section 1 of the application stating the applicant was HG Trading limited/Hees Garden Restaurant. • The applicant at section 5 of the application wrongly ticked the box stating that a licence was already held for the proposed new licenced premises. The footprint of the building leased by H G Trading limited is 599 – 607, which is the overall postal address, it has never been subdivided. Numbers 605 and 607 Mt Eden Road, is not covered by any alcohol licence. Section 25 of the Act, allows the issuing of a second licence of another kind, to the same premises, either for part or the whole of the premises. The applicant holds an existing on licence and applies for a licence of another kind in an off licence. Section 32 of the Act restricts section 25, but is further extended to complimentary sales s35. The Inspector has inquired into the application and has met with the applicant at the premises on three separate occasions and discussed the application in detail. It is evident that the kind of business which is sought has come about by customer demand from the restaurant. The applicant has applied for an Off Licence, not fully understanding the different requirements of the Act. This has been discussed with the applicant, who can now see the complications before her. This means that the original application form does not really reflect what is being sought by the applicant. The applicant has now had the time to consider her application and realises that it cannot be granted for a standard section 32 and must be an application for a complimentary section 35 off licence. There are no issues with the applicant in relation to section 105 of the Act, who have successfully run their restaurant business for many years without incident. The applicant has managed to tap into the lucrative travel industry including large volumes of Asian travellers both in hotels and in particular the cruise ships, most of whom like to combine their tour with a final meal at the restaurant, usually between the hours of 12.00 noon and 4.00pm +, before returning to their departing ship or aircraft. As many visitors to the restaurant speak Mandarin, they are comforted by the staff at the restaurant, who are also fluent in Mandarin. The tourists are regularly enquiring about obtaining last minute gifts and momento’s to remember New Zealand by. The applicant has

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seen a business opportunity that is not clearly recognised by the SSAA Act 2012 or its predecessor SOLA 1989. The current SSAA Act 2012 is subjective and open to interpretation and is not written to be a hindrance to enterprise, with this in mind the applicant and the inspector feel that this new business fits into the category of complimentary sales. The applicant has supplied a comprehensive list of items to be sold, most of which are expensive and at the luxury end of the market. To complement some of these sales the applicant is seeking to sell some New Zealand fine fruit wines of a particular luxury blend. These items are to be packaged and often gift wrapped for the customer to take away as a memento of their trip to New Zealand or to be give as a gift. The inspector and the applicant have discussed the complications of complying with section 35 of the Act, which addresses complimentary sales. The applicant will only stock five fruit wines and Maori Titoki Liquor in a presentation bottle. The new off licence is not intending to sell to the local or passing community. The applicant is not going to stock or sell any beers, spirits other than Titoki Liquor, ready to drink cocktails or any of the other products often associated with a retail liquor outlet. Section 35 (1) (a) of the Act is specific, in stating that the business must be a shop, but not a shop where the principle business is that of food. In this instance the sale of food from the business is mixed dried and frozen foods, together with knitwear, health supplements, body creams, art and crafts, scented decorative candles and perfumes, all of which are New Zealand made, alcohol is likely to be no more than 15% of all sales, and a full list is attached. Of concern to the inspector is section 35.03 of the Act, other eligible premises. This subsection makes reference that ethnic product shops and retail souvenir shops are ‘unlikely’, to qualify for a section 35 licence. The inspector has researched the ramifications of this section and believes that the proposed premises are not selling ethnic products as they are all home produced here in New Zealand and are not of an overseas ethnic product. The inspector has obtained definitions of the words, ‘Souvenir’, and ‘Gift Shop’, • Souvenir describes T-shirts, coffee mugs, key rings and items of trivia. • Gift shop describes places normally in areas of tourists with a primary purpose of selling items that can be given to others. The applicants business is more in line with that of a Gift Shop and not a Souvenir shop as her goods are not of the trinket or cheaper items normally associated with a souvenir shop. Definitions are attached to file. The inspector has visited similar existing licensed premises licensed under SOLA, these include: 1. ‘WAH LEE’, of 214 Hobson Street, Auckland, 007/OFF/9166/20112. 2. DFS Gallaria 12-14 Customs Street West, Auckland, 007/OFF/9081/2012,

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3. Sky City retail shop 007/0FF/9027/2012. All of whom are operating under SOLA licences, where section 36.02(j) applies. The opinion of the reviewing inspector believes the applicant’s planned operation is consistent with section 35 of the Act, more so than the three premises mentioned above. The inspector makes note of the comment at section 35.03 of the Act that some applications are ‘unlikely’, to be granted and SOLA section, 36.02 (2) states the authority should be slow to extend premises categories to off licences. The inspector under section 103 of the Act has inquired into the application with three site visits, numerous e-mails and telephone calls and is of the opinion that this application should proceed, perhaps with caution in the first twelve month probationary period, with appropriate conditions imposed on the licence to ensure the applicant complies with the Act as it is intended and does not morph into anything other than what is currently being sought. In the inspector’s opinion the two businesses in question here, H G Trading Limited trading as ‘Hees Garden Restaurant’ an on licence and ‘H G Trading Limited’, which intends to trade as ‘H G Trading’ an off licence , are not overlapping licences. They are completely cut off from each other with no windows or doors leading from 605 into 599 – 603 or vice versa. Entry and exit into H G Trading is from Mt Eden Road, which has its own door. There is a solid fire door which leads into 607, which has no public access. Other examples of Off- Licences holding On- licences within the same footprint of a building under SSAA Act 2012 are Glengarry and Posh Nosh. It is the inspectors opinion that it is not possible for the SSAA Act to encompass every eventuality in relation to new styles of businesses, that may or may not develop, nor is it written to be obstructive, the inspector believes the SSAA 2012 is written to be subjective and open to interpretation depending on an individual application. The applicant is seeking conditions consistent with the style of off-licence for the area and as such the inspector considers that the sale and supply of alcohol under these conditions are consistent with the purpose of the Act and meets the criteria at section 105 of the Act. No public objections have been received. MOH are not opposed to this application. The inspector does not oppose this application, providing conditions on the licence are restricted to what the applicant is applying for. The Police are opposed to this application. Those conditions will be; 1. Sales of alcohol to compliment other items purchased. 2. No sales of beers, cider, spirits other than Titoki Liquor or RTD’s. 3. Wine sales are restricted to New Zealand made fruit wines. 4. No single sales of alcohol to local or passing trade without the purchase of complimentary goods. 5. Licensed hours will be restricted.

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3.

APPLICANT AND APPLICATION

3.1

Applicant • •

3.2

The applicant is a private company and is incorporated under the Companies Act 1993. A general discussion was held with the applicant on 8 December 2014. The applicant is aware of their responsibilities under the Act.

Comment There is no reason to believe that the applicant is not suitable to hold a licence. There are no concerns with other goods and/or services the applicant provides at the premises.

4.

PREREQUISITE CERTIFICATES

4.1

Planning Certificate A planning certificate is attached for retail premises selling souvenirs. That certificate shows that the proposed use of the premises meets the requirements of the Resource Management Act 1991 dated 24 October 2014.

4.2

Building Certificate A building certificate is attached for an off licence. That certificate shows that the proposed use of the premises meets the requirements of the building code dated 19 November 2014. This restricts occupants to a total of 19.

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OBJECTIONS AND EXTERNAL REPORTS

5.1

Public Notice The application was publicly notified in the New Zealand Herald on the following dates: • First Notice 5 September 2014 • Second Notice 12 September 2014 The objection period expired on:

1 October 2014

The application was publicly notified in the Central Leader on the following dates: • First Notice 11 March 2015 • Second Notice 18 March 2015 The objection period expired on:

2 April 2015

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5.2

Objections No objections have been received following the public notification.

5.3

Police Report Police reported on the application on 25 November 2014 and 23 January 2015. Those reports oppose the application.

5.4

Medical Officer of Health Report The Medical Officer of Health reported on the application on 12 December 2014. That report does not oppose the application.

6.

PREMISES

6.1

Details • •

6.2

The principal entrance is accessed from: 605 Mt Eden Road. Owner’s consent is attached in support of the application.

Kind of Premises An off-licence may be considered for this kind of premises, because it appears to meet the description found at section 35 of the Act Complimentary sales.

6.3

Licensed Area The premises is a small store 12ft x 14ft, with single door entry and exit, it has a small service counter at the rear, this whole area is to licensed and designated as supervised. The defined area is more precisely identified on the floor plan date stamped as received by Auckland Council on 24 November 2014, identified as number 605 and highlighted in pink authenticated by the inspector on 8 December 2014.

6.4

Previous History The premises have not previously traded.

6.5

Site Inspection The inspector visited the premises on 8 December 2014 and 29 January 2015. The premises identified at 605 Mt Eden Road, is not currently trading alcohol, the applicant is an experienced licensee and has the appropriate signage available. The applicant employs many duty managers. There was no concern with any promotion. There appeared to be sufficient levels of staff to manage the premises effectively.

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6.6

Comment The inspector does not oppose the design and layout of the premises. The applicant appears to have appropriate systems, staff, and training to comply with the law.

7.

ENVIRONMENTAL SCAN

7.1

Introduction The premises are situated on the outskirts of Mount Eden and are not amongst the main shopping area of Mount Eden. They provide a service to the tourist industry and the local community and passing trade. None of the reporting agencies holds any information in relation to general criminal activity in the area and links to premises, neighbouring car parks or hold concerns of noise, preloading or anti-social behaviour.

7.2

Neighbouring Land Use The applicant holds an on-licence for the neighbouring restaurant and there are two other licenced premises within 300 metres of the property. There are no street liquor ban areas immediately outside or adjacent to the premises. There are residential premises in all adjoining streets in every direction, none of whom have complained or objected to the proposed Off licence or the current On Licence for their restaurant Hees Garden.

7.3

Proximity to Sensitive Sites There are no sensitive premises situated within a 300 metre radius of the property.

7.4

Current and Potential Levels of Noise, Nuisance and Vandalism None of the reporting agencies hold any information in relation to noise, loitering, graffiti, damage or anti-social behaviour. The applicant is not intending to externally advertise alcohol.

7.5

Comment There is no reason to believe that the amenity and good order of the locality would be likely to be reduced, to more than a minor extent, by the effects of the issue of the licence.

8.

DISCUSSION

8.1

The inspector discussed the public notices with the applicant who has been confused with the new four public notice requirements.

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The applicant has successfully run a restaurant for years and was unsure of the new requirements in relation to four publications. The applicant advertised in the manner in which she had become accustomed previously. When this was pointed out to the applicant she quickly complied with four publications. The applicant has realistically endured two periods of public objection, without any objection. The inspector notes that the applicant has not fully complied with the public notice requirements under section 101, due to further misunderstanding of the Act. The inspector makes no adverse comment in relation to this and at the applicant’s request, would invite the authority if needed, to consider a waiver under section 208 of the Act. 8.2

The application is specific in what it wants to trade, the applicant is not intending to sell beer, cider, regular spirits, ready to drink cocktails or any other form of alcohol, other than NZ produced fruit wines and decorative Maori Titoki Liquor (a spirit), the applicant has agreed to her licence conditions restricting her product sales.

9.

CONCLUSION AND CONDITIONS

9.1

Conclusion The inspector has inquired into the application, and based on the information provided, the application meets the criteria in the Act. Subject to no new or contrary evidence being presented, the inspector does not oppose this application.

9.2

Conditions The recommended conditions are for a s35 Complimentary Off Licence; (a) (b) (c) (d) (e) (f) (g)

(h)

No alcohol is to be sold or delivered on Good Friday, Easter Sunday, Christmas Day, or before 1 pm on Anzac Day. Alcohol may be sold only on the following days and during the following hours: - Monday to Sunday 12.00noon to 8.00pm. The fees payable for the licensing of the premises concerned are the following risk rating: Low The sale of alcohol is only to be made to compliment other goods purchased. (No sales of alcohol alone). Only fruit based wine and decorative Maori Titoki Liquor to be sold. No beers, ciders, spirits other than Titoki Liquor or other alcohol based products are to be sold. The following steps must be taken to ensure that the provisions of the Act relating to the sale of alcohol to prohibited persons are observed: (i) Ensure that no intoxicated persons are allowed to enter or to remain on the premises. (ii) Ensure that appropriate signs are prominently displayed detailing the statutory restrictions on the supply of liquor to minors and intoxicated persons, at each entry and adjacent to every point of sale. The whole of the premises are designated as supervised.

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Prepared by

Del Haddy Alcohol Licensing Inspector

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Alcohol Harm Prevention Unit Auckland City District Police PO Box 92-002, Auckland 1142 Ph: 353 0892 Fax: 309 6826

25 NOVEMBER 2014 The Secretary Auckland District Licensing Committee Private Bag 92-300 AUCKLAND

Dear Sir Q/OFL/2014/3492: HG TRADING LIMITED: HG TRADING LIMITED: THIS APPLICATION HAS BEEN INQUIRED INTO BY POLICE. THIS IS AN APPLICATION FOR AN OFF LICENCE FOR PREMISES WHICH CURRENTLY TRADES AS A RESTAURANT KNOWN AS HEES GARDEN RESTAURANT. SECTION 32, SALE AND SUPPLY OF ALCOHOL ACT 2012. AN OFF LICENCE MAY BE ISSUED ONLYTO THE HOLDER OF AN ON-LICENCE FOR A HOTEL OR A TAVERN, OR A RETAIL PREMISES WHERE IN THE OPINION OF THE LICENSING AUTHORITY OR LICENSING COMMITTEE CONCERNED AT LEAST 85% OF THE ANNUAL SALES REVENUE IS EXPECTED TO BE EARNED FROM THE SALE OF ALCOHOL FOR CONSUMPTION SOMEWHERE ELSE. AN OFF LICENCE CANNOT BE ISSUED TO A PREMISE TRADING AS A RESTAURANT AND THE APPLICATION IS OPPOSED.

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Gary WHITTLE Authorised OFFICER Auckland City District Police DHQ E-MAIL: [email protected] DDI: 353 0892

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Auckland Regional Public Health Service Cornwall Complex, Floor 3, Building 15 Greenlane Clinical Centre Private Bag 92 605 Symonds Street Auckland 1150 New Zealand Telephone: 09 623 4600 Facsimile: 09 623 4665 Website: www.arphs.govt.nz

12 December 2014

Your Reference: Q/OFL/2014/3492

The Liquor Licensing Inspector District Licensing Agency Auckland City Council Private Bag 92516 Wellesley Street Auckland 1010 Dear Sir/Madam SALE AND SUPPLY OF ALCOHOL ACT 2012: Application For OFF Licence: New HEES GARDEN RESTAURANT : 599-607 MT EDEN ROAD, MT EDEN The Medical Officer of Health has no matters of concern. She does not oppose the issuing of this Licence. Yours faithfully

Angela Waru for Medical Officer of Health Auckland Regional Public Health Service

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Dear Mr. Haddy, As per our earlier phone conversation,I am now supplying you a more detailed list of items which we propose to sell in our new shop at 605,Mt. Eden Road. We will start off with these items,but when time goes by,will make adjustment to follow the demand of the market. Preserved food products including: Dried Fish Mawk Dried Sea cucumber Canned N.Z Abalone Dried Deer Products Commercially packed frozen products: NZ Paua Meat NZ Scampi Paua in Shells Frozen Lamb,Steak,Venison,Ostrich etc Selected NZ wines: Apple wine Feijoa Wine Kiwi Fruit Wine Blueberry Wine Feijoa Manuka Honey Wine Maori Titoki Liqueur (in art-work bottle) Health Supplements of all local brands: Omega Oil Joint Care Primrose Oil Gingko Tablets Liver-care Tablets Royal Jelly Propollis Maori and NZ art-craft: Kauri bowls,plates,spoons,boards,and kitchen-ware Kauri artwork:clocks,calendars,toilet-rolls hangers,tissue box covers etc Woolen knitwear: Scarves and hats Cardigans, Jumpers and jackets

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Sheep-skin products: Slippers,boots Jackets: Household decorations and deodorants: Scented candles Perfume with diffusers Natural hygiene products Lanolin body lotion Hand -cream Olive oil body lotion Olive oil hand cream Shampoo and Conditioner Manuka honey cream and soap New Zealand native flower tea-bags

Please let me know if you require any more information. Thanks for you kind attention and assistance in this matter. Yours sincerely, Wynsome Wong

On Tue, Dec 16, 2014 at 6:38 AM, Del Haddy wrote: Hi, Your list needs to give more detail in relation to the non food products. Obviously your products will change overtime as business needs demand.Regards Del Sent from my Windows Phone From: Hees Garden Sent: 15/12/2014 16:46 To: Del Haddy Subject: Re: FW: HG Trading limited- List of trading goods.

Dear Haddy, Is the list I have sent to you not detailed enough? O course we will sell other products on top of the ones we have mentioned but I don't know how specific you want that to be.

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Wynsome Another catagory of items we intend to sell is the natural skincare products which we only allocate like 5% but we will increase it to a more substantial amount. On Mon, Dec 15, 2014 at 8:18 AM, Del Haddy wrote:

Hi Wynsome, Thanks for the communications, I would ask that you review the products you intend selling with a little more detail in regard to the none food items, sections 35 of the Act allows the DLC to override section 32, providing you are a shop, but not a shop where the principle business is that of food. You will need to increase your none food products quite substantially, furs, rugs, NZ products souvenirs but to suggest a few. Regards Del

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Regards

Del

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From: [email protected] [mailto:[email protected]] Sent: Friday, 12 December 2014 4:44 p.m. To: Del Haddy Subject: Re: HG Trading limited- List of trading goods.

Dear Mr.Haddy, Once again I am confirming that we are not going to operate as a general off-license premises.We are not going to sell beer or spirits and a detailed list of our selling products has been submitted to you as requested. Await your reply. Thanks. Wynsome Wong

Sent from my iPad

On 12/12/2014, at 12:58, Del Haddy wrote: Hi, Can ask if you are to be selling beer or spirits and that you are not operating as a general off licence to the public. Del From: Hees Garden [mailto:[email protected]] Sent: Friday, 12 December 2014 11:50 a.m. To: Del Haddy Subject: HG Trading limited- List of trading goods.

Dear Mr Haddy, As per our previous phone conversation, please find below a list of proposed selling items for the store at 605 Mt Eden Road by HG Trading Limited: Preserved food products 60% including: 1. 2. 3. 4. 5.

Dried Fish mawk Dried Sea cucumber Canned abalone Dried Deer products Olive Oil

Natural Body care products- 5% including 1. Hand creams

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2. Body Lotions 3. Shampoos Commercially packed frozen products, 20% including: 1. 2. 3. 4.

NZ Paua meat NZ Scampi NZ Whole Paua Frozen meats, Lamb, Steak, Ostrich, Venison etc.

Selected NZ produced wines, 15% of sales including: 1. 2. 3. 4. 5. 6.

Apple Wine Feijoa Wine Kiwifruit Wine Blueberry Wine Manuka Honey Wine Maori Titiko Liqueur (in art-work/decorative bottle)

I hope this list can supply enough information for our proposed business. Thank you for your assistance in this matter and look forward to hearing your reply to this email address on the liquor license application.

Thanks and Regards, Wynsome Wong Company Director HG Trading Limited Hi Wynsome,

Thanks for meeting with us today at the proposed premises 605 Mount Eden Road, Mount Eden, Auckland. Your explanation of the proposed business is now quite clear to me in that you intend to sell locally produced wares of many kinds to the tourist industry, many of whom will require you to deliver items to their hotels. As you have indicated the sales from selected fruit wines will only be about 15% of the business takings.

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Although being headed from the one business of HG Trading Ltd, which also runs the Hees Garden restaurant as a restaurant with an on licence, the business will be run with different banking accounts and run independently of the restaurant. The premises are suitable for the purpose you have described and you have the required certificates. Your application is for an Off licence we more commonly call a bottle store, which would have to fit within section 32 of the SSAA 2012 Act, your proposed business does not fit any of section 32. However section 35 of the Act offers an exemption to your intended kind business. For my records and for the information I will be supplying to the DLC, can you please forward to me an extensive list of the products you intend to sell. Alongside which details of the alcohol you intend to sell. More importantly the kinds of alcohol you will not be selling I.e. Spirits and beers etc. I also have copies of the public notices you have supplied; 1. New Zealand Herald dated 5 September 2014 2. New Zealand Herald dated 12 September 2014.

The requirement of the Act insists that on top of the above publications, you should have also advertised twice in the local newspaper as well, if you have copies of these please supply them, if you have not done them please do them as a matter of urgency, in total that will mean 4 publications. This is a confusing area and if you have not done so, you must do the local newspaper publications asap.

Derek Haddy | Alcohol Licensing Inspector Auckland District Licensing Agency Licensing and Compliance Services DDI: 09 353 9093 | Extn (40) 9093| Mobile 021 917 510| Auckland Council, Level 1, 35 Graham Street, Auckland Central

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CAUTION: This email message and any attachments contain information that may be confidential and may be LEGALLY PRIVILEGED. If you are not the intended recipient, any use, disclosure or copying of this message or attachments is strictly prohibited. If you have received this email message in error please notify us immediately and erase all copies of the message and attachments. We do not accept responsibility for any viruses or similar carried with our email, or any effects our e

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Decision No. PH 1673/2008 IN THE MATTER

of the Sale of Liquor Act 1989

AND IN THE MATTER

of an application by THE WAREHOUSE LIMITED pursuant to s.31 of the Act for an off-licence in respect of premises situated at 140 Don McKinnon Drive, Albany, North Shore City, known as “The Warehouse”

BEFORE THE LIQUOR LICENSING AUTHORITY Chairman: Members:

District Court Judge E W Unwin Ms J D Moorhead Mr P M McHaffie

HEARING at AUCKLAND on 23 October 2008 Final Submissions received on 12 November 2008 APPEARANCES Mr A Dormer and Mr B W Morley – for applicant Mr G R Kayes – for NZ Police – in opposition Mr M J Lopdell – agent for North Shore District Licensing Inspector – in opposition Mr A Hearn – representing the Alcohol Advisory Council of New Zealand – submitter Mr A J Higgins – representing Hospitality Association of New Zealand Incorporated – submitter Ms A M Richards – representing Medical Officer of Health – submitter

RESERVED DECISION OF THE AUTHORITY Introduction [1] Before the Authority is an opposed application for an off-licence. The applicant is The Warehouse Limited (hereafter called ‘the company’). The company wishes to sell liquor as part of its business as a large-scale general merchandise budget store. The application is brought under s.36(2)(b) of the Act. In other words the company contends ‘that the sale of liquor would be an appropriate complement to the kind of goods sold in the premises’. The name of the business will be “The Warehouse”. There is no issue about the company’s suitability to hold a licence. [2] The shares in the company are held by The Warehouse Group Limited which is a publicly listed company with some 311 million issued shares. The company has five directors all of whom are based in Auckland. The premises are in Don McKinnon Drive in Albany. They are currently being operated as the normal ‘Warehouse’ style of general merchandise store. In accordance with the company’s corporate branding this is a place where “everyone gets a bargain”. The store has a total retail area of 6,319 square metres, but cannot be classified as a supermarket because the

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2 emphasis is not on main order household foodstuffs. The company seeks to license the whole area without any designation. The company requested trading hours from 7.00 am to 12.00 midnight from Monday to Saturday inclusive. [3] The company provided a certificate from the North Shore District Council confirming that the proposed use of the premises to sell liquor for consumption off the premises met the requirements of the Resource Management Act 1991. In addition there was a further certificate as required by the Act, that the building met the requirements of the New Zealand Building Code. There was no public opposition to the proposal. [4] Both the Police and the District Licensing Agency Inspector opposed the application on the grounds that the kinds of goods being sold in the store would not be appropriately complemented by liquor. In April 2008, the company (through its agent) provided the first list of what was called a copy of the store’s ‘grocery department list’. The first list contained 1500 line items that the company claimed would be appropriately complemented by the sale of liquor. However, the company contended that there were other items that would also be complemented by the sale of liquor, although perhaps not as convincingly, as the grocery department list. [5] Pursuant to regulation 8(2)(l) of the Sale of Liquor Regulations 1990, the company was requested to provide a list of the kind of goods sold in the premises. The company responded by providing a second list containing some 29,994 items that it regarded as ‘appropriate complements’. It was stated that the list was comprised of but not limited to the following categories: Grocery food items 4,787; Beverages 277; Snacks and Confectionery 1,264; Gift Baskets 14; BBQs 83; Chilly bins 63; Picnic sets 7; Party goods 362; Glassware sets 56; Entertainment/video 353; DVDs 12,122; and Music 10,434. [6] The company confirmed that groceries items represented an average of 14.0% of total turnover. It claimed that other complementary items made up a further 9.2% of total turnover. In other words on the company’s own estimate, 76.8% of the turnover was from goods that liquor was not regarded as complementary to. [7] There was considerable confusion about what the company was claiming were the kind of goods that would be complemented by liquor. It is assumed that the nonfood items in the second list made up the extra 9.2% of turnover that the company was claiming. Yet there were no figures given for the turnover of say DVDs, music and videos. Since they could not (in our view), possibly be regarded as goods that the sale of liquor would complement, this sort of information would have been quite important. [8] The company produced a third list at the hearing. The third list contained 5,742 items. The document was also claimed to be the grocery list. According to the summary at the front, there were eleven categories as follows: Ambient grocery (baking needs, breakfast, canned fruit – meat – vege, condiments, cooking needs, jams and spreads, desserts & yoghurts, quick meals) Bread and small goods (buns, rolls, bread, cake,

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crumpets, muffins) Baby products Chilled Foods (Single serve ice cream) Beverages (hot, cold, fruit juice, cordial, new age, water, milk & cream) Frozen Snacks and Confectionery (nuts, chips, confectionery) Petcare Torches and batteries Consumables (Disposable tableware, dish wash, tissues, cleaners, bin liners) Health and Beauty

48 247 28 268 30 1,084 266 203 480 2,921

[9] The company’s basic contention was that anything that might be used on a social occasion should be included as items that would be complemented by the sale of liquor. But as can be seen, health and beauty products make up over 50% of the list. Such items could not possibly be included. Quite clearly items such as baby, beverages, and frozen, should also be excluded as well as confectionery, including 262 items of Christmas confectionery, and pet care products. There were very few items that could be used to make up a gift hamper. [10] Adopting a generous interpretation we found 574 items (10%), that could possibly be complemented by the sale of liquor. Our list included 292 gift sets. However, if the company were to achieve the level of proof expected, we would expect each category of gift set to be viewed and considered, to see whether or not the gift would fall into a ‘complementary’ list. Both the Police and the District Licensing Agency Inspector were given the opportunity to comment on the ‘lastminute’ list. They did so and we have used their comments above. In reality, the latest list did not take matters any further, and if anything created even more confusion about the precise nature of the company’s case. [11] The monitoring agencies contended that the sale of liquor would not complement the great majority of items sold in the store. They referred to the multiplicity of other merchandise that is sold in “The Warehouse”. With regard to the first two lists that were supplied, they argued that a number of items were seasonal in nature (such as heaters and BBQs). In addition they suggested that liquor would only complement special occasion products for Easter and Christmas during those occasions. Finally, they contended that items such as BBQs and picnic sets would only be purchased once, and could not be continuously complemented by the sale of liquor. [12] There were three submitters. The Hospitality Association of New Zealand Incorporated and the Alcohol Advisory Council of New Zealand were given the right to be heard pursuant to s.108(f) of the Act. The Medical Officer of Health has an automatic right of audience under s.108(c) of the Act. Their respective submissions assisted us in considering what was effectively a ‘Greenfield’ application. The Application [13] Mr Andrew Peter Oswald was the company’s only witness. He is the company’s Project Manager. He confirmed that “The Warehouse” opened its first store in 1982. There are now 85 stores throughout the country with around 8,000

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4 staff employed. He said that the business had initially focussed on surplus goods at discounted prices. The company had a ‘no frills’ approach that enjoyed many years of success. He described “The Warehouse” as a large-scale general merchandise store, and said that the company did not pretend to be anything else. He said that over the years the company had regularly looked at ways to expand its product range. [14] Mr Oswald stated that in 2005, the company had decided to expand its product lines to include the sale of liquor. A separate company was formed to operate offlicences under the brand of “Warehouse Cellars”. He stated that the company’s intention had always been to adopt a cautious and gradual approach to its involvement with liquor. Mr Oswald oversees the establishment and governance of this aspect of the business, together with pharmacy licensing. He confirmed that the first off-licence granted to the company was in Tauranga using the ‘store within a store’ concept. Since that time six other separate stores have been licensed, although one is not currently utilising its licence. [15] Mr Oswald referred to customer satisfaction surveys that the company undertakes. Recent surveys have shown that customers feel inconvenienced at having to make two separate payment transactions when purchasing liquor as well as general merchandise. Although he did not say that this was one of the reasons for the current application, he stated that the company’s philosophy is to make the shopping experience, pleasurable and simple. [16] Mr Oswald confirmed that the company intended to license the whole store. This was to enable a customer to select liquor and then continue shopping. He argued that this was no different from the two other large department stores in New Zealand that held a complementary-style off-licence. These stores are “Smith and Caugheys” in Auckland (LLA 1576/98), and “Kirkcaldie & Stains” in Wellington (LLA 1914/93). [17] Mr Oswald confirmed that the company was opposed to having a designation on the premises although he accepted that a designation is a valuable tool in preventing sales to minors. He argued that such a designation would be impossible to enforce. He pointed out that designations were not mandatory for off-licences, and that no designations are imposed in supermarkets. [18] Mr Oswald said that the liquor area would be located in the existing grocery department. He advised that the floor space of this department represented 4.8% of the total store, and that the liquor area would use about a quarter of grocery department’s space. He confirmed that the size of the grocery department dictated that the premises are not a supermarket or a grocery store. He said that the sales of groceries averaged about 14% of total sales. [19] We were advised that the company places an emphasis on training, and has sophisticated software that will be installed at all checkouts. In addition, the company has a policy to request identification for all customers appearing to be under the age 25 years. The company conducts its own internal audits, employs security officers, and maintains closed circuit television cameras. Mr Oswald said that the company would match but not lead price competitiveness. It would not be allowing single bottle sales of beer or RTDs.

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5 [20] Mr Oswald gave evidence that the company had conducted a survey of customers in its Whangarei store. It found that most of the customers did not buy liquor. Eighteen per cent of those who did so, visited the store specifically to purchase liquor and no other goods. About 11% of customers who visited the store were aged between 18 and 24. Mr Oswald presented overall customer demographics. These showed that about 226,000 customers aged between 14 and 19 visited one or more of “The Warehouse” stores throughout New Zealand in a year. He stated that about 8% of all customers were under the age of 18. [21] A comparatively small proportion of Mr Oswald’s evidence was devoted to arguing the case that the sale of liquor would be an appropriate complement to the kind of goods sold in the store at Albany. Mr Oswald accepted that he could not claim that liquor was complementary to all the products on display. He said that they had a large selection of gift baskets and hampers. In addition he argued that customers could make up their own hampers by purchasing such items as gift items, wrapping, cards, and cane baskets. Mr Oswald had no doubt that liquor was complementary to gift items, although he did not specify the type of gift he was talking about. [22] Mr Oswald acknowledged that products such as BBQs, dinnerware sets, chilly bins, and picnic sets would only be purchased on the one occasion, and then would only be replaced as required. Accordingly, if liquor was an appropriate complement, it would only be purchased once. On the other hand, he contended that the store sold all the items for which other stores had previously been granted a ‘complementary’ off-licence. [23] Mr Oswald was questioned extensively (and in an exemplary way) by Mr Kayes for the Police. The focus was on the first list of 1,500 grocery items that had been initially sent to the District Licensing Agency. Mr Kayes had helpfully recast the list, and provided numbers. Mr Oswald accepted that there were no figures given for the turnover of each item. For example there were 16 picnic sets but no information of their percentage of total sales. Mr Oswald acknowledged that the figure of 14% sales turnover included the gift baskets. [24] Mr Oswald was questioned about a number of specific items on the list. Reference was made to beverages (247 items), milk (24 items), ice cream (32 items), children’s biscuits (3 items), confectionery and chocolates (531 items), and Easter lines including teenage specialities (293 items). Mr Oswald maintained that many of the items could be consumed at parties or other social functions and be taken on picnics. On the other hand he was practically shamed into an acknowledgement that the list should be revisited. [25] Mr Oswald submitted that when one looked at the bigger picture of when and why we are drinking, and what other products we are consuming at that time, then party consumables should be included in the list, as liquor is frequently consumed in a social environment. He summarised his evidence on this issue by claiming that 14% of the company’s Albany store sales were in grocery lines, and that the store also had a gift and gift basket business to which the sale of liquor would be complementary. The Police

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6 [26] Inspector Gary Alan Davey is stationed at North Shore. His portfolios include management of liquor licensing, alcohol enforcement, road policing and emergency incident response. He re-iterated the Police view that alcohol was a key driver in offending. He noted that there were 20 off-licensed premises within five kilometres of the subject premises. [27] The Inspector’s evidence was that apprehensions for excess breath or blood alcohol cases in the Albany area had increased each year for the last three years. Similar statistics were produced in relation to offenders who had consumed alcohol prior to offending. He stated that there was now a liquor ban in place that covered the area where the subject premises were situated. Inspector Davey took the view that easier access to cheaper alcohol would increase the number of intoxicated offenders in the Albany area. [28] Inspector Davey referred to a 2008 research report by Tasia Huckle et al entitled “Density of alcohol outlets and teenage drinking: living in an alcogenic environment is associated with higher consumption in a metropolitan setting”. The authors’ conclusion was that: “Living within 10 minutes’ drive of relatively more outlets was associated with larger quantities consumed by this sample of young drinkers. In this sense the alcogenic environment was found to be an important element in what is a key public health issue for many similar countries. While other aspects of the environment were found to be important influences on drinking, such as social supply and the deprivation of the locality in which the young person lived, the outlet density is an aspect which is amenable to control by public policy and therefore of considerable importance from a public health perspective.” [29] We were also invited to consider the 2007 study by the National Drug Research Institute in Australia. This was entitled “Restrictions on the Sale and Supply of Alcohol: Evidence and Outcomes”. One of the key findings was as follows: “In a broad sense – and all other things remaining equal – when alcohol availability increases, alcohol-related harms will also increase, and when alcohol availability decreases, alcohol-related harms will decrease.” The District Licensing Agency Inspector [30] Mr Peter Norman Richardson is a warranted Liquor Licensing Inspector for North Shore City. He gave evidence about two meetings he had held with the company’s licensing agent and Mr Oswald, leading up to the application being heard. He had noted a comment in the discussions about the similarity of product sales between supermarkets and “The Warehouse”. It was acknowledged that supermarkets sell more food, and “The Warehouse” sells a greater variety of nonfood items. Mr Richardson produced copies of the respective flyers as examples of the number of goods that are mutually sold by both businesses. [31] Mr Richardson confirmed that he had received a response to his request for a list of goods, to which the sale of liquor would be complementary, by email on 16 June 2008. He had not found either of the first two lists very helpful. He had set out fully the details of that response in his report. He had received a further email on 25 June 2008, and had set out those details also. However, he noted that he had been requested to keep such details confidential.

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[32] Mr Richardson asked us to note that if the application were to be granted, the store would be the largest single undesignated off-licensed premises in the country.

The Alcohol Advisory Council of New Zealand [33] Doctor Andrew Hearn is the Manager of Strategy and Research at the Alcohol Advisory Council of New Zealand (the Council). The Council has a statutory interest in reducing alcohol-related harm in New Zealand. In addition the Council saw this case as an important one from the standpoint of the precedent that such a licence would set in the alcohol market in New Zealand. [34] The Council had two basic concerns. The first concern was that the grant of an off-licence was outside the intent of s.36 of the Act. He quoted from the company’s website: “The Warehouse Group comprises 85 Warehouse NZ stores and 43 Warehouse Stationery stores. The Warehouse is one of New Zealand’s largest retailers, known and loved by Kiwis for its wide range of departments, including apparel, entertainment and technology, music, sporting, gardening, grocery and many others.” [35] Dr Hearn argued that because of the extensive and diverse range of goods in the store, granting the application would reflect too liberal an interpretation of s.36 of the Act. He referred to the decision of Combined Rural Traders LLA PH 957/2008 in which comment had been made that the types of premises that might be granted complementary licences were limited. [36] The Council’s second concern was the significant impact that a grant of a licence would have on the alcohol market. The Council was concerned that more “Warehouses” and other large stores would follow suit, all seeking to be able to sell the full range of products. The Council believes that opening up the market for spirits and RTDs to large retail chains would result in further discounting and increased harm to young people. There was also an opportunity for a business such as “The Warehouse” to cross-promote a wide range of products with liquor. This was important because the lack of a designation means that the company could display liquor all over the store. The Hospitality Association of New Zealand Incorporated [37] The Hospitality Association of New Zealand Incorporated (hereafter called the Association), is a statutory body created in 1969, and subsequently restructured. It has in excess of 2350 members who are engaged in all aspects of the hospitality industry. There is a perception that the Association speaks for all involved in the industry, particularly at a political level. [38] Mr A J Higgins is a Barrister and Solicitor of the High Court and is the Association’s counsel. He referred to the lack of a separate till system, bank accounts, staff and the like. The Association saw the application as a first application by a multi-department store seeking the ability to sell all types of liquor as an appropriate complement to a multiplicity of goods. He stated that it was the

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8 Association’s view that the Act does not contemplate the sale of liquor as an appropriate complement to such a large diversity of retail goods as is sold by the company.

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9 The Medical Officer of Health [39] Ms Angela Maria Richards is employed by the Auckland Regional Public Health Service as a Liquor Licensing Officer. The Medical Officer of Health has a legislative function under the Health Act of improving, promoting and protecting public health. This includes reducing negative social and health outcomes caused through the consumption of alcohol. She supported the opposition to the application based on the proposition that liquor would not be complementary to most of the goods in the store. [40] Ms Richards advised that the Medical Officer of Health was concerned that “The Warehouse” was portrayed as a family shopping experience. It was believed that with an undesignated area, children and young people would be exposed to product and product advertising, leading to potential consumption at a young age. There were also concerns about discounting of liquor pricing leading to more competition and more hazardous drinking. Finally, there was a potential for other businesses to apply for even more licences if the application was successful. Closing Submissions on behalf of Police [41] Mr G R Kayes represented the Police and provided very helpful submissions along with a bundle of relevant authorities. He referred to the following comments made by Tompkins J in The Wine and Spirit Merchants of New Zealand Inc v James Gilmour and Co Limited [1997] NZAR 134: “Subsection 2(b) is not an easy section to apply. Neither in the section nor elsewhere in the Act is the expression “an appropriate complement” defined. In any application in reliance on that subsection there will need to be detailed evidence of the kind of goods sold on the premises. The Authority will need to decide, having regard to the meaning of that phrase, interpreted in the context of the section and the Act and in accordance with the purpose of the provision, whether, in the particular circumstances of the case, the sale of liquor was an appropriate complement to the kind of goods sold. Each case will need to be decided having regard to its own facts. This the Authority did not do.” [42] In applying the above decision, Mr Kayes was critical of the company’s lack of detailed evidence. It was his submission that the company carried the onus of providing the detailed evidence of the kind of goods sold on the premises and it had failed to do so. For example he pointed to the first list with the 1,500 items. Included in the list were 33 ice-cream items, 97 biscuit items, 542 confectionery and chocolate items (including numerous items aimed at children), 296 Easter items, 278 beverages and 251 other items. In other words the vast majority of the items were patently the wrong kind. He argued that if these items were removed from the claimed turnover, then it would be reduced dramatically. The claimed turnover was therefore meaningless. [43] Mr Kayes referred to the second list with its 29,994 items and noted that videos, music and DVDs alone made up nearly 23,000 of such items. He contended that it was not the Authority’s job to have to sort through the lists in order to find items to which liquor might be an appropriate complement. [44] Mr Kayes referred to our comments in The Woodward Group Limited LLA PH 1415/2008 as follows:

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“An argument could be mounted that when one examines the Sale of Liquor Act’s objective, the reduction of liquor abuse might well be encouraged if the number and type of off-licences nationally, was reduced. However, it is not our intention to rely on this provision in declining this application. What can be said is that the adoption of a strict interpretation of the wording in section 36 will not offend against the purpose of the Act. On the other hand, the adoption of a liberal approach could do so.” [45] He advised that the Police supported this approach particularly where there is a discretion to be exercised. Furthermore, the Police took the view that in the light of the Act’s objective, issues such as density of outlets and the relationship between harm and availability, were matters that we could properly take into account. [46] Mr Kayes was good enough to analyse some of the Authority’s previous decisions in relation to s.36(2)(b) of the Act as follows: [a]

La Ronde Trading Limited LLA 1039/96. The applicant hired out a comprehensive range of party equipment including barbecues, glasses, crockery, sound and lighting. The Inspector opposed the application because the goods were hired and not sold. The Authority granted the application ‘on the papers’. It did not appear to address the issues raised by the Inspector.

[b]

GLG (NZ) Limited LLA 1101-1101/97. The applicant sold a range of barbecues and accessories, lawnmowers, outdoor furniture, gas heaters and patio heaters. It was argued that there was a high correlation between the use of a barbecue and the consumption of liquor. In its decision, the Authority accepted a submission that the “coincidence of consumption” was not the test to be applied. It declined the application and distinguished the La Ronde case (above) on the basis that items such as barbecues and outdoor furniture were of a more lasting and durable nature.

[c]

Smith & Caughey Limited LLA 1576/98. This was an ‘on-the-papers’ decision as the application was not opposed. The applicant was described as a department store within which was located a food retail area, devoted to speciality delicatessen products including preserves, chutneys, pickles, sauces and gift baskets. The Authority was satisfied that the principal business of the store was not the sale of food or groceries and accepted that the sale of liquor was an appropriate complement to the kind of goods sold on the premises.

[d]

Gan Limited LLA PH 791/2003. The applicant was described as a sophisticated, specialised innovative gift business. The application was not opposed on the ground that the sale of liquor was an appropriate complement to the kind of goods being sold. The issue was whether the application offended against s.36(4) of the Act.

Closing Submissions on behalf of the Inspector [47] Mr M J Lopdell appeared as agent for the Inspector and provided thoughtful closing submissions. He submitted that if it was found that liquor would be an

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11 appropriate complement to some of the goods sold in “The Warehouse”, the licence should not issue. Mr Lopdell questioned whether the premises were caught by s.36(4) of the Act, and whether ‘food’ could include items that are not consumed. There was also a suggestion that “The Warehouse” could fall within the definition of a grocery store, thereby adding a further reason why the application could be refused. While his two arguments were ingenious, we found it possible to determine the case on its merits, and accordingly, it is not necessary to respond. [48] Mr Lopdell pointed to the wording of s.36(2)(b) of the Act and in particular that the word ‘kind’ was singular. He argued that if it had been intended that a business could obtain a full off-licence on the basis that it stocks one or two items to which the sale of liquor might be an appropriate complement, then the wording in the section would have been ‘kinds of goods’. He argued that because of that wording, the sale of liquor must be an appropriate complement to all or at least most of the goods sold on the premises. In other words, the only stores that might qualify for a licence are speciality shops and stores that sell generic goods. Mr Lopdell submitted that such an interpretation was in keeping with the restrictive nature of s.36 of the Act. [49] Mr Lopdell also argued that in the past, the Authority might have looked at the business conducted on the premises rather than the kind of goods that were sold. He noted that in The La Ronde Trading Limited case (supra), the company had been granted a complementary style off-licence, but the business did not sell the goods, it only hired them. Mr Lopdell also gave examples of the difference between complementing and supplementing. He submitted that the sale of liquor would be supplementing the kinds of goods being sold in “The Warehouse” rather than complementing them. [50] Mr Lopdell contended that it was incumbent on us to specify in our decision the kind of goods to which the off-licence may be regarded as complementary. He referred to ss.37(4)(d) and 37(6) of the Act and suggested that if a licence was granted then a condition should be imposed restricting the sale of liquor to persons who have purchased one or more of the specified items. [51] Mr Lopdell pointed out that licences that may be issued under s.36(2) are discretionary unlike licences issued under s.36(1) of the Act. In other words under s.36(1) of the Act the Authority shall grant a licence only to certain types of premises. Under s.36(2) of the Act, the Authority may grant licences to other types of premises if it is satisfied that certain conditions have been met. Closing Submissions on behalf of the Applicant [52] Mr Dormer submitted that the Act was a liberalising Act under which licences had become “easy to get and easy to lose”. He argued that the consistent theme in our decisions was that if certain criteria were met, then a grant of a licence was almost inevitable. He contended that the company had met the necessary criteria. He suggested that since the Act had been passed in 1989, there had been 13 amendments. In other words, Parliament had had ample opportunity to correct any misunderstandings as to its intention and had not done so. Mr Dormer contended that because two department stores had been granted ‘complementary’ style licences, then consistency demanded that a similar approach should be taken for “The Warehouse”.

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12 [53] Mr Dormer said that the company’s position was that the sale of liquor was complementary to the sale of groceries (and gift baskets). He argued that it was not necessary to specify the actual goods to which it was claimed the sale of liquor was complementary. For example he accepted that the sale of liquor was not an appropriate complement to sugar or marmalade or nappies, but submitted that it was the totality of the grocery department’s stock that was complementary. He relied on the third list of food or grocery items. [54] Mr Dormer noted that Parliament had clearly acknowledged that the sale of liquor was appropriate in supermarkets and grocery stores. He went so far as to suggest that wine and beer were appropriate complements to the kind of goods sold in such stores. Accordingly he argued that an off-licence could be granted in respect of the grocery department in its collective capacity. [55] In response to Mr Lopdell’s argument that s.36(2)(b) of the Act provided for the ‘kind’ of goods, he pointed to the fact that the Interpretation Act 1999 had provided that words in the singular include the plural. In response to Mr Lopdell’s argument that we were required to exercise a discretion as to whether to grant a licence, he suggested that the wording of the two subsections should be interpreted to mean that it was mandatory to refuse a licence under s.36(1) of the Act if the criteria had not been met, and discretionary to refuse a licence if the criteria had not been met under s.36(2) of the Act. [56] Mr Dormer argued that some of the Authority’s decisions had shown a tendency to interpret the Interpretation Act 1999 as being more restrictive than its predecessor. We accept that the commentators have suggested that the status quo should remain. To which we might ask why Parliament deliberately removed the words ‘fair, large and liberal’ from the previous Act? The Authority’s Conclusion and Reasons [57] Section 36 of the Act seeks to describe the types of premises in respect of which off-licences may be granted as follows: (1)

Except as provided in subsections (2) and (5) of this section, an off-licence shall be granted only – (a)

To the holder of an on-licence in respect of a hotel or tavern, in respect of the premises conducted pursuant to that licence; or

(b)

To the holder of a club licence, being a club that is entitled under paragraph (i) or paragraph (j) of section 30(1) of this Act to hold an off-licence, in respect of the premises conducted pursuant to that licence; or

(c)

In respect of premises in which the principal business is the manufacture or sale of liquor; or

(d)

In respect of – (i)

Any supermarket having a floor area of at least 1000 square metres (including any separate departments set aside for such foodstuffs as fresh meat, fresh fruit and vegetables, and delicatessen items); or

(ii)

Any grocery store, where the Licensing Authority is satisfied that the principal business of the store is the sale of main order household foodstuff requirements.

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13 (2)

(3)

(4)

The Licensing Authority or District Licensing Agency, as the case may be, may grant an off-licence in respect of other premises if the Licensing Authority or District Licensing Agency as the case may be, is satisfied, in a particular case, (a)

That, in the area in which the premises are situated, the sale of liquor in premises of a kind described in paragraph (c) or paragraph (d) of subsection (1) of this section would not be economic; or

(b)

That the sale of liquor would be an appropriate complement to the kind of goods sold in the premises.

Nothing in subsection (1) or subsection (2) of this section shall authorise the grant of an off-licence in respect of – (a)

Any service station or other premises in which the principal business is the sale of petrol or other automotive fuels; or

(b)

Any shop of a kind commonly known as a dairy.

Nothing in subsection (2) (b) of this section shall authorise the grant of an offlicence in respect of any supermarket or grocery store, or any other premises on which the principal business is the sale of food or groceries.

[58] At the outset of this decision, a number of principles need to be established. The first principle is that it is up to the company to satisfy us that the sale of liquor in its Albany store will be an appropriate complement to the kind of goods sold in the premises. As was pointed out by Tompkins J in The Wine and Spirit Merchants case (supra), the company has an obligation to supply detailed evidence of the kind of goods sold on the premises. The evidence that we received has failed to reach such a standard. As was pointed out by Mr Kayes, it is not our duty to sift through 29,000 products to ascertain what the sale of liquor might appropriately complement. [59] We do not accept Mr Dormer’s argument that the company has no obligation to list the kinds of goods that it believes the sale of liquor will complement. If an applicant could obtain an off-licence by referring to the fact that it sold groceries, then all it would have to do was ensure that the sale of food was the not the principal business of the store (s.36(4)). The opportunity to obtain full off-licences for all types of businesses, if all the applicant has to do is stock some delicatessen items, would be too attractive to pass up. In short the reasonable system of control would disappear. To suggest that items that might make up a gift basket could also be included, can only be refuted, if we know what items we are dealing with. [60] That brings us to the second principle. We agree with those who contended that the Act was not designed to allow complementary style licences to large stores or businesses which sell a great variety and range of products, particularly where the sale of liquor would complement very few of such items. On that basis practically any store that sold a few gift baskets or souvenirs or speciality gifts might be in a position to claim the right to a full off-licence, provided its principal business was not the sale of food. Mr Lopdell was right. It is the ‘kind’ of goods sold in the premises, not the ‘kinds’ of goods. Although Mr Dormer suggested that words in the singular include the plural, they only do so if that assists with interpretation. [61] In each case it is necessary to step back and view the business as a whole. This is the third principle. If the clear expectation is that liquor would not be an appropriate complement to the general items being sold, then that is the end of the

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14 matter. Now we accept that in the light of this reasoning, there are two department stores with complementary style off-licences that may not technically qualify for the licences that they have obtained. We believe that the Authority was exercising a discretion when the licences were granted. It may be that those licences will have to be reviewed. [62] Assessing goods that the sale of liquor would complement should not be an exercise in imagination. We note the decision of GLG (NZ) Limited (supra), in which it was determined that ‘coincidence of consumption’ was not the correct test. That is the fourth principle. It is drawing too long a bow to suggest that because liquor might be consumed at picnics or social events, or become part of a gift basket, then its sale would complement any item associated with that event (including music by way of an example). The connection should be instant and realistic. The product that liquor most closely complements, is food. Yet perversely, stores whose principal business is the sale of food or groceries (such as delicatessens), are prevented from holding such a licence. [63] This in turn leads to the fifth principle, which is also referred to in the GLG decision. Section 36 is a restrictive provision. Parliament specifically limited the kinds of premises that may be granted an off-licence. Although Mr Dormer might hope for the days when licences were easy to obtain, the fact remains that they are not that easy to lose. The issue of trading hours is to be argued in the Court of Appeal. As was said in the above decision: “The Authority cannot utilise s.36(2)(b) to extend such types of premises far beyond what Parliament must be presumed to have intended.” [64] Mr Lopdell highlighted the sixth principle. Under s.36(2) of the Act the Authority has a discretion whether or not to grant a licence. We do not accept Mr Dormer’s argument that this means that the section is permissively empowering. It seems to us that the wording is clear. Under s.36(2) of the Act it makes sense to give the Authority a discretion when dealing with applications that are marginal and uncommon even if the criteria have been satisfied. [65] Section 4(2) of the Act gives a lead on how our discretion should be exercised as follows: The Licensing Authority, every District Licensing Agency, and any Court hearing any appeal against any decision of the Licensing Authority, shall exercise its jurisdiction, powers and discretions under this Act in the manner that is most likely to promote the object of the Act.

[66] Therefore Mr Kayes is right. When exercising our discretion, we can take into account matters such as density of outlets, and the potential for increased availability of liquor as well as the link with hazardous drinking. [67] In an international study sponsored by the World Health Organisation entitled ‘Alcohol, No ordinary commodity’ (Babor,T., Caetano,R., Casswell,S., et al. Research and Public Health (2003) Oxford University Press/World Health Organisation, Geneva. August), the following comments were made: “The higher the average amount of alcohol consumed in a society, the greater the incidence of problems experienced by that society. Consequently, one way

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15 to prevent alcohol problems is through policies directed at the reduction of average alcohol consumption, particularly those policies that limit the availability of alcohol.” ‘It is widely and internationally accepted that reduction from alcohol related harm can best be achieved by applying combinations of the following strategies: i. ii. iii. iv. v. vi.

minimum legal purchase age; government monopoly of retail sales; alcohol taxes to increase the price; restrictions on hours or days of sale; outlet density restriction; and licensing and enforcement to ensure compliance with these measures.”

[68] Taking the Act’s object into consideration, outlet density restriction is a legitimate reason to interpret the provisions of the Act in a conservative way, when a discretion is being exercised. Making decisions that tend to reduce the number of potential outlets will also promote the Act’s objective provided the relevant criteria are observed. In this case it is unnecessary to exercise a discretion at any event, because as will be seen, it is our view the company has failed to satisfy the criteria. [69] The final principle answers the comments made by the submitters. Pursuant to s.37(6) of the Act, we have the power when issuing this type of off-licence, to impose a condition relating to the kind or kinds of liquor that may be sold or delivered pursuant to licence. We would have had no hesitation in imposing conditions restricting the licence to wine and beer only. In his final submissions Mr Dormer suggested that spirits were complementary to the sale of gift baskets. He did not mention the sale of RTDs. With the benefit of hindsight the company can count itself fortunate to have previously been granted the right to sell all types of liquor in what could be regarded as a special circumstance store-within-a-store concept. [70] One of the most serious concerns about the application is the request to have the entire premises licensed. This is in order to enable purchasers to continue with their shopping having purchased liquor, and then pay for the liquor at the normal checkouts. The company has then stated that it needs to have the premises undesignated because a supervised designation would be impossible to control. [71] This lack of constraint would have meant that the company could have displayed liquor all over the store. In our view, such a proposal is quite untenable from a licensing perspective. The prospect of endless displays and the ‘cross-over’ promotions depicted by Dr Hearn is quite daunting. While the company intends to act conservatively in its venture into the liquor industry, it is entitled to change its corporate mind, and could apply to license all its branches. In such a large space, a defined area that contained the display of liquor would have been an attractive condition for a licence. [72] There is also the question of precedent. The prospect of being able to sell spirits as well as wine and beer has an attraction for aggressive companies. We have already dealt with an attempt by a supermarket to sell all types of liquor within the supermarket footprint. If this licence is granted in its present form, then technically any business that sells a few items that the sale of liquor will complement will be entitled to follow suit. The danger of reducing liquor to the level of an anyday/any-time/any-place commodity should not be underestimated.

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[73] In the decision of Combined Rural Traders Society Limited LLA PH 957/2008 we attempted to define ‘appropriate’ and ‘complement’ and we do not intend to repeat the process, particularly as the decision is under appeal. In this case we are far from satisfied that the sale of liquor is an appropriate or a ‘fitting’ or ‘proper’ or ‘suitable’ complement to the kind of goods that are sold by the company in its Albany store. In other words the company has not reached the stage where the exercise of a discretion becomes necessary. [74] We do not believe that the sale of liquor is an appropriate complement or ‘accessory’ to the great majority of the items in the company store. The best that can be said is that the company displays for sale, a limited number of food lines, that the sale of certain types of liquor could complement. Accordingly, and for the reasons we have attempted to articulate, the application is refused.

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This map/plan is illustrative only and all information should be independently verified on site before taking any action.Copyright Auckland Council. Land Parcel Boundary information from LINZ (Crown Copyright Reserved). Whilst due care has been taken, Auckland Council gives no warranty as to the accuracy and completeness of any information on this map/plan and accepts no liability for any error, omission or use of the information.Height datum: Auckland 1946.

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Hees Garden Rest and HG Trading 599-603 and 605 Mt Eden Road, Mt Eden, Auckland.

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Gift shop From Wikipedia, the free encyclopedia

Jump to: navigation, search This article is about the type of store. For The Tragically Hip song, see Gift Shop (song). This article needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. (August 2012)

Directional signs to the gift shop and exit (Must go through the gift shop to get to the exit) Ripley's Aquarium, Myrtle Beach SC A gift shop is a store primarily selling souvenirs relating to a particular topic or theme. The items sold often include coffee mugs, stuffed animals, t-shirts, postcards, handmade collections and other souvenirs. Gift shops are normally found in areas visited by many tourists. Hotels and Motels in Canada and the United States often feature a gift shop near their entrance. Venues such as zoos, aquariums, national parks, and museums have their own gift shops; in some cases these shops sell items of higher value than gift shops not associated with a venue, as well as trinkets. These stores are sometimes a source of financial support for educational institutions.

Contents [hide] • • • • •

1 Definition 2 Mainstream gift shop businesses 3 Online gift shops 4 See also 5 References

Definition[edit] A gift shop can be defined as a shop which has the primary purpose of selling items that will be given to others for no material gain.

Mainstream gift shop businesses[edit]

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There are many ‘mainstream’ shop businesses that target gift-buyers as their primary customer base. These retailers can vary in size from small independent boutiques, to chain stores, to large department stores. Each will have different business strategies however will typically sell various product ranges that appeal to different customer groups, with gender, age, celebration or personal interest differentiation. Many shops that are not primarily gift shops become gift shops during typical gift-giving periods such as Christmas and Valentines Day, offering ranges of gift products for a limited time period in the build-up to these celebrations.

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Eirenei Siitia From: Sent: To: Subject:

Paul Radich Thursday, 5 February 2015 10:20 a.m. Del Haddy; Angela Marle commentary from the act

SL36.16 Souvenir and specialty shops (1) Greek products shop A shop that sold Greek products, including jewellery, paintings, rugs, ceramics, and brass, was granted a licence to sell Greek wines and liqueurs because they would be complementary to the articles sold on the premises: V E Hatzipanis (The Greek Souvenir Shop) LLA Decision 695/91. (2) Retail souvenir shops The premises of a retail souvenir shop selling a wide range of tourist items, including food, toys, and clothing, were held appropriate for selling New Zealand wine as a complement to those other goods: Made in NZ Ltd LLA Decision 2122/93. See also Kirkcaldie & Stains Ltd LLA Decision 1914/93, whose successful application was to sell alcohol in hampers as a complement to the goods sold in the Wellington store. In A G Schneideman & Co Ltd LLA Decision 1841/91, a souvenir shop was authorised to sell wines, beers, and spirits manufactured in New Zealand only. (3) Other examples See also Petrisino & Feutz LLA Decision 1348/91 (Italian foods and associated items); Nagasaki LLA Decision 908/91 (Japanese products — mainly foodstuffs such as sauces, noodles, pickled vegetables, soya bean curd, etc); Nova Fine Arts Ltd LLA Decision 1363/91 (a wide range of speciality goods and services such as imported rugs, coffee, delicatessen items, and tailoring); and Hire Centre (Palmerston North) Ltd LLA Decision 1341/91 ( “balloon wrapped” gifts). See also OTC Office Supplies Ltd LLA Decision 816/91 and Saunderson Packaging Ltd LLA Decision 2064/92. A florist and gift shop business was also held appropriate: S G Parker LLA Decision 3354/92; P M McKinley LLA Decision 3168/92. The Authority’s traditional liberal approach to s 36(2)(b) was questioned by Randerson J in Lopdell v Deli Holdings Ltd [2002] NZAR 227. In R A & E M Jack LLA Decision PH574/01, the Authority’s first decision since Randerson J’s judgment, the Authority held that the argument that bottles of wine are an appropriate complement to gift baskets of flowers is now effectively ruled out. It “seems clear that” such decisions are “in conflict with s 36(4) of the Act”. (4) Exceptions However, the sole fact that the proprietor trades as a souvenir shop is not conclusive. In an application by Chol Nam Chon & Hoa Ju Chon LLA Decision PH677/02, the partnership operated as a souvenir shop in Auckland specialising in the sale of New Zealand honey and honey-based products to the Asian tourist market. The sales of honey amounted to 41 percent of the revenue, health food or honeyrelated products another 38 percent, and chocolates 8 percent. The Authority applied the definition of food in s 2 Food Act 1981 and 1

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concluded that these products fell within that definition, meaning that food comprised 87 percent of the total sales. The Authority accepted that the sale of New Zealand wine and beer would be very complimentary to the style of goods for sale in the premises, and reluctantly concluded that in accordance with the decision in Lopdell v Deli Holdings Ltd (above) the application had to be declined.

SL36.17 Composite retail businesses A fishing lodge “shop” dealing in boat rentals, fishing gear, fishing licences and permits, the rent of chalets, and the sale of papers, milk, ice creams, etc (the latter sales accounting for only 10 percent of turnover) was granted an off-licence: B Liebergreen LLA Decision 2287/92. The Authority described the premises as: “in effect a little composite retail shop with accent on accommodation, boat hires and fishing gear. It is not in our acceptance the type of shop commonly known as a dairy.”

SL36.18 Suitability of complementary goods (1) Stock and station agency In Elders Pastoral (NZ) Ltd LLA Decision 753/94, the Authority considered the question of complementary goods in relation to a stock and station agency. The inspector strongly opposed the grant of the application on the grounds that the premises were also used to store poisons for pest control and animal health. The Authority held that the sale and supply of liquor from a stock and station agency was an appropriate complement to other goods sold by stock and station agents. The Authority acknowledged that liquor could not be as complementary to such goods as wine is to the sale of food. However, it relied on the dicta of Tipping J in Cahill v Police (1993) 11 CRNZ 52, at p 55, where he said in relation to sale of liquor legislation: “This is an area where the law should be as simple as possible and as close to common sense as possible”. The applicant also gave an undertaking that the alcohol would be stored in separate and distinct areas of the premises to eliminate the possibility of crosscontamination. Since the Elders Pastoral decision in 1994, the Interpretation Act 1999 has replaced the Acts Interpretation Act 1924. Previously, and at the time of the Elders Pastoral decision, the Acts Interpretation Act 1924 governed the interpretation of statutes and, in particular, s 5(j) allowed Courts to interpret legislation by giving a: “fair, large, and liberal construction and interpretation as will best ensure the attainment of the object of the Act and of such provision or enactment according to its true intent, meaning, and spirit.” Section 5(1) of the Interpretation Act 1999, however, reads: “The meaning of an enactment must be ascertained from its text and in the light of its purpose.” Having regard to that change, the Authority in Combined Rural Traders Soc Ltd LLA Decision PH957/08 reconsidered established jurisprudence granting off-licences pursuant to s 36(2)(b) to rural retail suppliers. It concluded (at para 31) that it was: “no longer appropriate to adopt a fair, large and liberal construction and interpretation. Prima facie, the words in the statue (sic) will bear their plain and ordinary meaning: CIR v Alcan New Zealand Ltd [1994] 3 NZLR 439,443.” The Authority went on to consider dictionary definitions of “complement” and “appropriate” in the context of subs (2)(b). Applying the new approach to statutory interpretation, and on the basis of evidence that the FarmCentre in question had as sales: agrichemicals 19.4 percent; stock food 15.1 percent; animal health products 13.6 percent; fencing 7.5 percent; household items 2.2 percent; and in existing stores other than the applicant’s store (being 10/30 of a chain) liquor comprising only 0.5 percent, the Authority concluded that it could not be satisfied that the sale of liquor was an “appropriate” or a “fitting” or “ “proper” or “suitable” complement to the kinds of goods sold by the applicant company (para 35). Nor did it accept that the sale of liquor would be “an appropriate complement or ‘accessory’ to the items in the company store” already. The Authority did not accept that “liquor ‘goes together’ with the goods in the store, nor that it completes the 2

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range of goods on display”. This, despite the link between a hardworking farmer and having a drink at the end of a tiring day. Counsel for the applicant argued that the availability of liquor allowed farmers to complete their business on a one-stop-shop basis. The Authority accepted this as an ingenious argument but related the complementarity in subs (2)(b) to the items for sale at the business and not the convenience of the farmer purchasers. A further argument by counsel for the applicant, seeing the tide was turning, was that liquor would be a complement appropriate to the household goods sold by the rural retail supplier. The Authority rejected that because household goods items constituted only 2 percent of turnover. The Authority found no assistance in s 4 of the Sale of Liquor Act. While there were no liquor abuse issues evident in the case at all, the Authority in Combined Rural Traders (at para 38) relied on Australian Drug Research Institute claims that: “the greater availability of alcohol in a society will increase the average consumption of its population when such changes reduce the ‘full price’ of alcohol, i.e. the real price of beverages at retail markets plus the convenient cost of obtaining them.” In short, the Authority concluded (at para 38) that, by granting the application, there would be “an increased opportunity for the sale of spirits and RTDs”. The Authority traced the history of early s 36 licences for stock and station agency premises following the enactment of the Sale of Liquor Act 1989, which had previously held wholesale licences under the 1962 legislation. Ultimately, the Authority concluded (at para 43) that the changed Interpretation Act: “prevents the adoption of such a liberal approach as was shown in the Elders decision. Furthermore we believe that if decisions are made solely on the basis of pragmatism, or common sense, or the fact that other licences have been issued in similar circumstances, then such decisions establish a precedent from which other consequences flow.” That seems to send a signal that pragmatism, commonsense and precedent are no longer as relevant for the Authority as may have been thought to be the case. In conclusion, the Authority (at para 50) indicated that: “the types of premises in which the sale of liquor would be an appropriate complement are limited. Three examples would be souvenir and tourist shops selling New Zealand made wine and the like, duty-free shops, and gift shops. In addition there are one or two large department stores that sell delicatessen items along with wine.” The Authority acknowledged that the delicatessen situation was subject to the High Court decision in Lopdell v Deli Holdings Ltd [2002] NZAR 227 (HC). The application for the off-licence was refused. See Combined Rural Traders Soc Ltd LLA Decision PH957/08. Highlighting the distinction between the former approach and that taken today, the Authority in The Warehouse Ltd [2009] NZAR 584 ruled (at para 62) that the connection between liquor and the items sold in the store “should be instant and realistic”.

SL36.19 Appropriate complement to other goods (1) Delicatessens equated with other businesses In Cactus Jack’s Ltd (Cajn’ts Creole Delicatessen) LLA Decision 520/92, the applicant sought a licence to sell “beers and wines of a kind only imported from Louisiana”. The Authority referred to Ambrosia Delicatessen LLA Decision 319/91 and Delicato Corp Ltd LLA Decision 967/91 and held that a delicatessen should be restricted to wine as defined in s 37(3) in the same way as supermarkets and grocery stores. The Authority’s approach to the licensing of delicatessens was still unchanged in September 1995: Zarbo Ltd LLA Decision 2289/95. See also Riverlands Marlborough Ltd LLA Decision 759/97, where the Authority considered the effect of s 36(4) on a butcher’s shop that “had to diversify into delicatessen ranges and sell a range of items not traditionally associated with a butchery”. However, in James Gilmour & Co Ltd LLA Decision 715/96, the Authority reconsidered its approach in LLA Decision 135/91 and decided to grant the application. The Authority applied the same reasoning as in M Norrish (Ambrosia Delicatessen) LLA Decision 319/91, and its stock and station agents decisions — that the sale of liquor would be an appropriate complement to the goods sold in the warehouse. (2) 3

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Asian speciality foods — Korean comestibles There have been a number of cases involving Asian speciality, essentially Korean, grocery stores and questions about the size of the stores and whether or not Asian/Korean goods have the same status as other groceries. The Authority has unequivocally answered that question affirmatively, recognising that these sorts of stores have been set up to cater specifically for a growing market that reflects the presence of a strong and growing Asian community in New Zealand. The Authority has also departed, where appropriate, from its indication that premises that are under 100 m2 are unlikely to avoid being classified as dairies where clearly, upon inspection, there can be no basis for a suggestion that the premise are dairies but they are instead specialist Asian grocery stores. See Every Mart Ltd LLA Decision PH406-07/02, Byung Chan Min LLA Decision PH154/02, Cho Chang Geun & Co Ltd LLA Decision PH549/02, and Fortune on Investment Ltd LLA Decision PH551/02.

SL36.20 Wholesaler — subs (2) Tompkins J discusses the application of subs (2) in Wine & Spirit Merchants of NZ Inc v James Gilmour & Co Ltd [1997] NZAR 134: “Subsection (2)(b) is not an easy section to apply. Neither in the section nor elsewhere in the Act is the expression ‘an appropriate complement’ defined. In any application in reliance on that subsection, there will need to be detailed evidence of the kind of goods sold on the premises. The Authority will then need to decide, having regard to the meaning of that phrase, interpreted in the context of the section and the Act and in accordance with the purpose of the provision, whether, in the particular circumstances of the case, the sale of liquor was an appropriate complement to the kind of goods sold. Each case will need to be decided having regard to its own facts.” In regard to s 36(2)(b), Tompkins J went on to say at 137: “[The Authority] appeared to take the view that because Parliament did not ‘turn its mind’ to the consequences of the subsection on a national liquor distributor, the subsection can be disregarded. Consistent with that approach, the Authority made no determination at all whether the principal business of (Gilmours) was the sale of food or groceries. This was an essential issue for the Authority to consider, because if the principal business that (Gilmours) carries out from the Pilkington Road premises is the sale of food or groceries, subs (4) prevents the Authority from granting a licence in reliance on subs (2)(b).” The Authority has recently had occasion to consider an application made under s 36(2)(b), not only in light of the James Gilmour decision, but also in light of the repeal of the Acts Interpretation Act 1924 by the Interpretation Act 1999. See Combined Rural Traders Soc Ltd LLA Decision PH957/08 and the commentary appearing in relation to that decision in [SL36.18(1)] above.

SL36.21 No requirement to purchase other goods There is no requirement for any particular customer to purchase the other goods to which the liquor is said to be “complementary”; merely that those other goods be “sold on the premises”. The Authority has held, however, that the connection between the other goods and liquor should be instant and realistic: The Warehouse Ltd [2009] NZAR 584. In earlier more liberal times, the Authority granted a complementary off-licence to a restaurateur to permit the off-sale of “fine wines to complement the meals he serves”: See J W Archibald LLA Decision 2527/92. The authors question whether a similar decision would be made today.

SL36.22 Barbecue accessories In GLG (NZ) Ltd [1997] NZAR 426, it was submitted that the sale of beer and wine could be seen as appropriate complement to the sale of barbecue accessories on the basis of their shared coincidence of consumption. In refusing the application, the Authority distinguished its decision in Glen Innes Party Hire LLA Decision 1039/96 on the ground that:

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“There a licence to sell liquor was sought to complete the provision of a range of products and services being supplied or provided for use on a ‘one off’ party occasion. Those facts can, in our view, be distinguished from the Barbecue Factory’s situation where consumable liquor is sought to be sold on the basis that it would complete the sales of goods of more lasting and durable nature such as barbecues and outdoor furniture.”

Paul Radich| Senior Advisor   Alcohol Licensing   Licensing and Compliance Services   Auckland Council  DDI 09 353 9168| Extn (40) 9168 | Mobile 027 277 1352   Auckland Council, Level 1, 35 Graham Street, Auckland CBD   Visit our website: www.aucklandcouncil.govt.nz 

    

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Eirenei Siitia From: Sent: To: Subject:

Hees Garden Tuesday, 16 December 2014 3:41 p.m. Del Haddy Re: FW: HG Trading limited- List of trading goods.

Dear Mr. Haddy, As per our earlier phone conversation,I am now supplying you a more detailed list of items which we propose to sell in our new shop at 605,Mt. Eden Road. We will start off with these items,but when time goes by,will make adjustment to follow the demand of the market. Preserved food products including: Dried Fish Mawk Dried Sea cucumber Canned N.Z Abalone Dried Deer Products Commercially packed frozen products: NZ Paua Meat NZ Scampi Paua in Shells Frozen Lamb,Steak,Venison,Ostrich etc Selected NZ wines: Apple wine Feijoa Wine Kiwi Fruit Wine Blueberry Wine Feijoa Manuka Honey Wine Maori Titoki Liqueur (in art-work bottle) Health Supplements of all local brands: Omega Oil Joint Care Primrose Oil Gingko Tablets Liver-care Tablets Royal Jelly Propollis Maori and NZ art-craft: Kauri bowls,plates,spoons,boards,and kitchen-ware Kauri artwork:clocks,calendars,toilet-rolls hangers,tissue box covers etc Woolen knitwear: 1

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Scarves and hats Cardigans, Jumpers and jackets Sheep-skin products: Slippers,boots Jackets: Household decorations and deodorants: Scented candles Perfume with diffusers Natural hygiene products Lanolin body lotion Hand -cream Olive oil body lotion Olive oil hand cream Shampoo and Conditioner Manuka honey cream and soap New Zealand native flower tea-bags

Please let me know if you require any more information. Thanks for you kind attention and assistance in this matter. Yours sincerely, Wynsome Wong

On Tue, Dec 16, 2014 at 6:38 AM, Del Haddy wrote: Hi,  Your list needs to give more detail in relation to the non food products. Obviously your products will change  overtime as business needs demand.Regards  Del    Sent from my Windows Phone  From: Hees Garden Sent:  15/ 12/ 2014 16:46 To: Del Haddy Subject: Re: FW: HG Trading limited‐ List of trading goods. 2

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Dear Haddy, Is the list I have sent to you not detailed enough? O course we will sell other products on top of the ones we have mentioned but I don't know how specific you want that to be. Wynsome Another catagory of items we intend to sell is the natural skincare products which we only allocate like 5% but we will increase it to a more substantial amount. On Mon, Dec 15, 2014 at 8:18 AM, Del Haddy wrote:

Hi Wynsome,

Thanks for the communications, I would ask that you review the products you intend selling with a little more detail in regard to the none food items, sections 35 of the Act allows the DLC to override section 32, providing you are a shop, but not a shop where the principle business is that of food.

You will need to increase your none food products quite substantially, furs, rugs, NZ products souvenirs but to suggest a few.

Regards

Del

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Regards

Del

From: [email protected] [mailto:[email protected]] Sent: Friday, 12 December 2014 4:44 p.m. To: Del Haddy Subject: Re: HG Trading limited- List of trading goods.

Dear Mr.Haddy, 4

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Once again I am confirming that we are not going to operate as a general off-license premises.We are not going to sell beer or spirits and a detailed list of our selling products has been submitted to you as requested.

Await your reply.

Thanks.

Wynsome Wong

Sent from my iPad

On 12/12/2014, at 12:58, Del Haddy wrote: Hi,

Can ask if you are to be selling beer or spirits and that you are not operating as a general off licence to the public.

Del

From: Hees Garden [mailto:[email protected]] Sent: Friday, 12 December 2014 11:50 a.m. To: Del Haddy Subject: HG Trading limited- List of trading goods.

Dear Mr Haddy,

As per our previous phone conversation, please find below a list of proposed selling items for the store at 605 Mt Eden Road by HG Trading Limited:

Preserved food products 60% including: 1. Dried Fish mawk 5

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2. 3. 4. 5.

Dried Sea cucumber Canned abalone Dried Deer products Olive Oil

Natural Body care products- 5% including 1. Hand creams 2. Body Lotions 3. Shampoos Commercially packed frozen products, 20% including: 1. 2. 3. 4.

NZ Paua meat NZ Scampi NZ Whole Paua Frozen meats, Lamb, Steak, Ostrich, Venison etc.

Selected NZ produced wines, 15% of sales including: 1. 2. 3. 4. 5. 6.

Apple Wine Feijoa Wine Kiwifruit Wine Blueberry Wine Manuka Honey Wine Maori Titiko Liqueur (in art-work/decorative bottle)

I hope this list can supply enough information for our proposed business.

Thank you for your assistance in this matter and look forward to hearing your reply to this email address on the liquor license application.

Thanks and Regards,

Wynsome Wong

Company Director HG Trading Limited

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Hi Wynsome,

Thanks for meeting with us today at the proposed premises 605 Mount Eden Road, Mount Eden, Auckland.

Your explanation of the proposed business is now quite clear to me in that you intend to sell locally produced wares of many kinds to the tourist industry, many of whom will require you to deliver items to their hotels.

As you have indicated the sales from selected fruit wines will only be about 15% of the business takings.

Although being headed from the one business of HG Trading Ltd, which also runs the Hees Garden restaurant as a restaurant with an on licence, the business will be run with different banking accounts and run independently of the restaurant.

The premises are suitable for the purpose you have described and you have the required certificates.

Your application is for an Off licence we more commonly call a bottle store, which would have to fit within section 32 of the SSAA 2012 Act, your proposed business does not fit any of section 32. However section 35 of the Act offers an exemption to your intended kind business.

For my records and for the information I will be supplying to the DLC, can you please forward to me an extensive list of the products you intend to sell. Alongside which details of the alcohol you intend to sell. More importantly the kinds of alcohol you will not be selling I.e. Spirits and beers etc.

I also have copies of the public notices you have supplied;

1. New Zealand Herald dated 5 September 2014 2. New Zealand Herald dated 12 September 2014.

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The requirement of the Act insists that on top of the above publications, you should have also advertised twice in the local newspaper as well, if you have copies of these please supply them, if you have not done them please do them as a matter of urgency, in total that will mean 4 publications. This is a confusing area and if you have not done so, you must do the local newspaper publications asap.

Derek Haddy | Alcohol Licensing Inspector Auckland District Licensing Agency Licensing and Compliance Services DDI: 09 353 9093 | Extn (40) 9093| Mobile 021 917 510| Auckland Council, Level 1, 35 Graham Street, Auckland Central

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